Secrecy News

Why Are There So Many Leak Prosecutions?

Share this:

As is often remarked, the number of individuals charged with Espionage Act violations by the Obama Administration for disclosing information to the media without authorization is unprecedented and exceeds all previous cases in all prior Administrations combined. But why is that?

There are several possible explanations. One answer is that the sources of unauthorized disclosures are easier than ever to identify. The actual disclosure transaction, as well as the source-reporter relationship behind it, often leaves an electronic footprint (especially email and telephone records) that official investigators are increasingly adept at exploiting. Another explanation is that the voluminous and sometimes reckless disclosures published by WikiLeaks triggered a predictable intensification of efforts to track and punish leakers, along with the broader tightening of information security that seems to be the most enduring legacy of the WikiLeaks episode.

But yet another factor that is usually overlooked is that Congress has pressured the Administration to vigorously pursue leaks. Congressional leaders want leak prosecutions, and they want a lot of them.

At her May 17, 2011 confirmation hearing to be head of the Justice Department’s National Security Division (NSD), Lisa O. Monaco noted the role of the Senate Intelligence Committee in pushing the issue. “This Committee has… pressed the [Justice] Department and the intelligence community… to ensure that unauthorized disclosures are prosecuted and pursued, either by criminal means or the use of administrative sanctions,” she said.

After Ms. Monaco described each of the multiple pending leak prosecutions that were pending at that time, she was nevertheless asked (in pre-hearing questions) “Are there any steps that the Department could take to increase the number of individuals who are prosecuted for making unauthorized disclosures of classified information to members of the news media?”

Ms. Monaco told the Intelligence Committee that “the NSD has been working closely with the Intelligence Community to expedite and improve the handling of such cases.” She pledged to the Committee that it would be “my priority to continue the aggressive pursuit of these cases.” And so it has been.

The record of Ms. Monaco’s 2011 confirmation hearing before the Senate Intelligence Committee was published last month and is available here.

I have a better explanation: there’s a hopium epidemic in this country, especially among journalists. And when sober people raise the alarm, all we get is confabulations (see above) typical of the addict who refuses to admit there’s a problem.

The questionnaire that the Senate provided to Monaco has a section entitled ‘unauthorized disclosures of classified information’.

There is no blanket law against disclosing classified information, as you can learn by reading FAS’s dump of Jennifer Elsea’s Congressional Research Service paper. The law simply doesn’t exist. If it did, the government itself would be guilty on a continuous basis.

The Espionage Act standard is ‘information related to the national defense’, and just because someone stamps ‘classified’ on something doesnt make it an automatic Espionage Act violation.

The fact that the Senate Intelligence Committee doesn’t understand the basic law they are talking about is rather sad.

In the Drake case, one of the main people who helped push through the Inspector General report was Diane Roark — who was a staffer on a congressional committee. A Republican staffer. The FBI raided her house, and prevented her from talking to her own son – her crime? Helping other people file an complaint with the Inspector General. I’m no genius, but I’m pretty sure the fundamental purpose of Congress is to do things like file Inspector General reports, and political interference with that process is a danger to Congressional oversight power.

In the questionnaire, Monaco’s description of the Drake case is especially odd. She essentially says that Drake was a source for a reporter who wrote articles about the NSA. I hate to break it to her, but it’s not illegal to be a source for a reporter. If it was, every congressman and high Executive Branch official would be in prison, and the modern history section of the book store would be empty. Newspapers and magazines would have huge sections blacked out, redacted, just like Ali Soufan’s book about his time in the FBI.

The DOJ spokesman, Matt Miller, later flat out said the Drake case was ‘ill advised’. That is cold comfort to Drake and his friends and family who underwent, according to the judge in the case, years of ‘hell’ of being under indictment and being threatened with de-facto life in prison.

Nor is it a comfort to taxpayers who have to deal with events like the Underwear bomber….. while the FBI is running around chasing these bogus ‘leak’ cases for political reasons for years on end. The underwear bomber’s own father reported him before the bombing attempt. If we had all of the dozens of agents doing these ‘ill advised’ leak prosecutions instead working on terrorism maybe this information wouldn’t have slipped through the cracks.

Miller says that he wishes people who talk about these cases would make a distinction between Drake-like cases and other cases – but his own department cannot seem to bring itself to make a distinction between what the law actually says (“national defense” information) and what they wish it said (“classified information”). Classification is frequently not used in modern government to protect security, instead it is used for social status, for CYA, and for political hackery. We have come to the point where government prosecutors like William Welch have argued in court that ‘For Official Use Only’ markings are the same thing as “classified” – nevermind that things like party menus are marked FUOU all the time.

Then there is the problem of ‘retroactive classification’, which makes a mockery of ex-post facto law and is a slap in the face of civil society.

Meanwhile, books like Seeds of Terror by Gretchen Peters produce no publicity, no prosecutions, no nothing. The book flat out says that military and intelligence agents gave her classified information about the drug war in Afghanistan, and then she proceeds to present this this classified information to the reader. This book and her sources will never see any type of prosecution – because the government wanted that classified material to be leaked, because it backed up government policy (continue the war forever, give more money to the departments that fed her the info).

I just read “Charlie Wilson’s War” – one of the funniest scenes to me is when CIA officer Avrakotos purposely marks something a higher level of classification on purpose – just so that it will leak. I wonder if those leakers should have been prosecuted too?